JUDGMENT - PALSHIKAR V.G., J.:-Being aggrieved by the judgment and order of conviction under section 302 I.P.C. recorded by the Addl. Sessions Judge, Pune the appellant has preferred this appeal on the grounds mentioned in the memo of appeal and as verbally canvassed by the learned Advocate appearing on behalf of the appellant before us. 2. With the assistance of the learned Counsel for the defence and the prosecution we have scrutinized the record and re-appreciated the evidence. 3. The re-appreciation of evidence reveals the story of the prosecution as under : That the accused had a grudge against the deceased as he suspected illicit relationship between his mother and the deceased. There used to be frequent quarrels between the two because of the suspicion. On 28-6-1989 there took a place of quarrel between the accused and the deceased and the accused left the house in angry mood. It is then alleged by the prosecution that after the mother Parvatibai and Godavribai went to sleep in one room and Ankush the deceased with his wife slept in other room. Around 2.30 in the night Senabai widow of Ankush-deceased woke up hearing cries of Ankush to see the accused with dagger in one hand and lighted torching in the other. She also shouted, accused tried to gag her and then ran away. Others including Godavaribai came on the scene, saw the victim injured, arranged for his transportation to hospital where he died. The accused was suspected, arrested and prosecuted. The prosecution resulted in the conviction as aforesaid sentencing the accused to suffer imprisonment for life. The prosecution has examined as many as seven witnesses to prove it case. 4. P.W. 1 Subhash Deotarase heard the quarrel between the accused and the deceased. Even on the date of incident saw the victim injured and lodged First Information Report which he has proved at Ex. 19. Throughout in his deposition in the Court he does not mention any doubt regarding involvement of the accused though the FIR was lodged by him. Ex. 19 specifically mentions that the assault may have been caused by the present accused-appellant. There is thus material omission in the evidence of Subhash where he omits to mention the name of the accused as the assailant. The omission appears to be intentional in order to save the accused. In any case his entire deposition becomes doubtful. Ex. 19 specifically mentions that the assault may have been caused by the present accused-appellant. There is thus material omission in the evidence of Subhash where he omits to mention the name of the accused as the assailant. The omission appears to be intentional in order to save the accused. In any case his entire deposition becomes doubtful. Nothing turns on from his evidence factually as he is not an eye-witness. But the omission is significant. 5. P.W. 2 Sinabai Devtarasi is the widow of Ankush who died in the assault allegedly made by the accused. She has stated after narrating the enmity between the accused and the deceased that on the date of incident they were asleep in the night and as he was awakened by hue and cry of her husband the deceased and then she says "I woke up and saw that the accuse was there holding a dagger in right hand and the lamp created with clothes which was fixed on handle of umbrella (Temba). My husband had sustained injury on the stomach and chest". Then she states in unequivocal terms as under : "The accused while leaving house had left the dagger and handle of umbrella." According to this witness therefore she saw the accused standing with a dagger the husband injured. She also therefore is not an eye-witness to the factual assault. When she saw the accused injured was already sustained by the deceased. Apart from that she very uneqivocally states that the accused had left the dagger and the Temba at the spot. 6. P.W. 3 Godavari Gore is the next witness. She is the sister of the deceased Ankush. At the time on commission of offence she was sleeping with Parvatibai with whom Ankush is alleged to have had illicit relations. She also is not an eye-witness. She rushed to the spot after the assault was over and heard P.W. 2 saying that the accused had assaulted the deceased Ankush. She does not speak of the accused leaving Temba or the dagger at the spot. She claims to have entered the premises immediately after the cry was heard by her. She also is therefore not an eye-witness. 7. P.W. 4 Ashok Joshi is the panch who prepared the panchnama Ex. 29 which proves, according to the prosecution, recovery of dagger from another spot describing the panchnama. She claims to have entered the premises immediately after the cry was heard by her. She also is therefore not an eye-witness. 7. P.W. 4 Ashok Joshi is the panch who prepared the panchnama Ex. 29 which proves, according to the prosecution, recovery of dagger from another spot describing the panchnama. It will be seen that if this panchnama is correct that the dagger was recovered from a place other than the spot then P.W. 2 Sinabai is stating lie when she says that the accused had brought Temba and the dagger at the spot. It is pertinent to note that P.W. 2 Sinabai in her cross-examination has admitted that when she woke up there was dark in the room. She also admits that there was dark in front of her house. It will therefore be seen that according to P.W. 2 accused dropped Temba and the dagger at the spot. Admittedly there was dark. P.W. 3 who immediately reached there does not speak of either Temba or the dagger. She does not speak anything about light. If P.W. 2 is correct that there was dark in the room as also outside then it is difficult to believe that P.W. 3 saw what she says, what she saw. It is therefore only her statement that she heard P.W. 2 saying that Pakya had stabbed her husband. There is nothing on record to prove the presence of the accused at the scene except this statement of P.W. 2. There is nothing to connect the accused to the dagger. Serious doubt therefore arises as to whether it was accused who assaulted the victim or because of previous enmity existing he has been framed by the prosecution witnesses. There are serious lacunas in the prosecution case. Though P.W. 2 speaks of Temba no other witness speaks of it. According to P.W. 2 Temba was dropped on the spot and yet there is no recovery either of Temba or of dagger from the spot. Dagger is recovered from other place via Ex. 29. The statement of P.W. 2 is not correct when she says that accused dropped Temba and to dagger there. The existence of dagger is not disclosed by panchnama. But the panchnama mentions finding of Temba at the place. It has burnt out. Therefore whether the witness has really seen the accused or not becomes doubtful. Dagger is recovered from other place. The existence of dagger is not disclosed by panchnama. But the panchnama mentions finding of Temba at the place. It has burnt out. Therefore whether the witness has really seen the accused or not becomes doubtful. Dagger is recovered from other place. Both P.W. 2 and P.W. 3 admit that there was dark around the room. There is therefore reasonable possibility of the prosecution having involved the accused taking advantage of the previous enmity between them. In our opinion therefore it is the case where benefit of doubt must got to the accused. In the result, therefore, appeal succeeds and allowed. The order of conviction and sentence passed by the Sessions Judge, Pune is set aside. The appellant is acquitted of the offence with which he was charged. He may be released immediately if not otherwise require. Appeal allowed. -----